Landowners to file lawsuit against hydrofracking delays

A landowners group says it intends to file a lawsuit before the end of the year against what it says are the Cuomo administration’s unreasonable delays on hydrofracking.

The Joint Landowner’s Association has raised nearly enough money to file a claim in state Supreme Court, says the group’s attorney Scott Kurkoski. He says the suit will partly focus on New York state’s unprecedented delay in a decision about the controversial drilling process known as fracking, which has now dragged on for more than five years. He says numerous other states that now allow the gas drilling practice decided on the issue in anywhere from eight to 24 months.

“Not only has no other state ever taken this long, but no other state has issued a moratorium," Kurkoski said.

Kurkoski says even though a moratorium passed by the legislature and signed by then Gov. David Paterson has expired, the state still has a moratorium in place because its Department of Environmental Conservation can’t issue permits until it finishes its environmental review. That review is currently held up while Gov. Andrew Cuomo’s health commissioner, Dr. Nirav Shah, conducts a health study first. That review has been going on for more than a year, which Kurkoski says is too long.

“Clearly we want to be careful,” Kurkoski said. “I represent the landowners who live on these properties. They want to make sure there are no impacts to their families or their farms.”

But he says the landowners group believes the delay now can only be political. Cuomo faces significant opposition from anti-fracking groups.

Kurkoski says the environmental agency is not following its own rules under the state’s Environmental Quality Review Act, which says reviews must be done promptly, with a minimum of procedural and administrative delay.

The lawsuit will also claim that the more than five year delay on a hydrofracking decision is unconstitutional. Kurkoski says it’s preventing some property owners from money they should be rightfully earning through leases to gas companies.

The two plaintiffs in the case hold drilling leases with two gas companies, Norse and Chesapeake. Norse recently filed for bankruptcy, claiming the delays had put it out of business.

While Kurkoski would not reveal their identities, he says the plaintiffs are New Yorkers who own the subsurface drilling rights on the parcels of property, but not the surface rights. That means they can’t do something else with the land, like farming or developing a condominium complex, because someone else owns the surface rights.

Kurkoski says the practice of one party owning the surface rights to a piece of land while others own the subsurface rights for drilling and mining is common in western states, where lots of drilling takes place.

He says the suit will claim the delays amount to an unconstitutional taking by the government of the subsurface property owners' rights to make a profit from their land.

“What else can they do with their property rights?" Kurkoski asked.

He says the landowners group hopes to file the lawsuit by the end of December.

While Cuomo has said repeatedly he’s waiting for the completed review from his health commissioner, he has also said that he would make a decision on whether the state should go ahead with hydrofracking before next year's election.